Westminster's allocations scheme unlawful

Khayyat and another v Westminster City Council 

[2023] EWHC 30 (Admin)

Summary

A local housing authority is entitled to have a policy which prevents some homeless persons from being placed on its Housing Register. The judgment addresses the dividing line between who may and may not be lawfully excluded given the requirement in Part 6 Housing Act 1996 s.166A (3) to ensure that as regards priorities under the Housing Register, reasonable preference must be given to specified categories of persons. These include homeless persons and persons owed accommodation duties under Part 7 Housing Act 1996.

Westminster’s policy was held to be unlawful by excluding homeless persons and persons who were owed accommodation duties falling short of the main housing duty (the highest accommodation duty contained in Part 7).

Khayat - facts

Ms. Khayat applied to go onto the Housing Register. The Council stated that she would only be allowed to go onto the Register if the main housing duty were accepted towards her. It determined that she was not owed the main housing duty because she was not in priority need of housing. Ms. Khayat was refused entry onto the Register.

The finding that Ms. Khayat was not in priority need was successfully challenged in a county court appeal under section 204 Housing Act 1996.

The Council then accepted that Ms. Khayat was owed the main housing duty and placed her on to the Register but refused to accept that her date of registration should be backdated to the date that she was accepted as being homeless. Instead, it maintained that the date of registration was the date that it accepted that the main housing duty was owed to Ms. Khayat.

The date of registration was important because of the importance of waiting time when determining priority between persons on the Register who otherwise had equal priority. Judicial review proceedings were commenced seeking relief that Ms. Khayat’s registration date on the Register should be backdated to the date she was accepted as being homeless.

 By the date of the final hearing Ms. Khayat had been allocated accommodation.

Ibrahim - facts

Ms. Ibrahim was found to be intentionally homeless. This meant she was owed a lesser accommodation duty under Part 7 Housing Act 1996, falling short of the main housing duty. Ms. Ibrahim was refused entry onto the Register. She commenced judicial review proceedings arguing that the refusal was unlawful and failed to accord her the reasonable preference she was entitled to under section 166A (3) HA 1996.

Decision

After an extensive review of authority, the court decided that:

• The Scheme excluded from admission to the Register those homeless persons to whom the Main Housing Duty was not owed.
• Although that exclusion was subject to a discretion vested in the Council’s Director of Housing to admit to the Register persons who would otherwise be excluded, a policy which operated to exclude persons in respect of whom the Council had a duty to secure that a reasonable preference was given could not be rendered lawful by the existence of a discretion which could operate to remove some of such persons from the ambit of the exclusion.
• The reason for exclusion was to ensure that preference was given to those with the greatest need (those to whom the Main Housing Duty was owed).
• Exclusion of those entitled to a reasonable preference was lawful provided it was done by reference to a factor or factors of general application applicable to all applicants (e.g. existence of rent arrears, lack of local connection, history of anti-social behaviour). This did not amount to a redefinition of the statutory scheme.
• However, exclusion by reference to a factor which was not of general application would inevitably amount to a redefinition of the statutory scheme because it excluded from the provision of reasonable preference all members of the category or categories to whom the factor applied (such as the homeless) notwithstanding the fact that the Act provided that persons in that category or categories should receive reasonable preference.
• A policy which was inconsistent with the statutory scheme was necessarily unlawful. Neither inconsistency nor lawfulness could be seen as a matter of degree.
• If this was wrong, and the exclusion of a small number of people was not unlawful, the Council’s policy was still unlawful because it had the effect that no homeless person other than one with a priority need was placed on the Register – i.e. 100% of those homeless persons who were not in priority need were excluded.